Lords Sitting of 18 May 1868

MINUTES.
SELECT COMMITTEE—On Police Systems (Scotland), nominated.
PUBLIC BILLS—Second Reading—Endowed Schools* (98); Customs and Income Tax* (100); Exchequer Bonds (£1,600,000).*
Report—Regulation of Railways (95–101).

EDUCATION BILL.—(No. 53.)
(The Lord President.)
EDUCATION BILL.—(No. 53.)

  BILL WITHDRAWN.
  THE DUKE OF MARLBOROUGHseeing the noble Earl opposite (Earl Granville) in his place desired to answer a Question which he had put to him a few evenings since with respect to the course the Government intended to pursue in regard to the Education Bill, which stood for Committee on the 22nd inst. Several of their Lordships had placed Amendments on the Paper in regard to that Bill, some of which, if agreed to, must materially modify its character. The first Amendment had reference to the creation of a new Department of State; and the second proposed to leave out all the principal clauses
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  of the measure. He had hoped that after the manner in which that Bill had passed the second reading it might have been agreed to with certain modifications not affecting its principle. The Bill related to several important matters, into which he need not now enter as they were fully discussed on a previous occasion. After that discussion he was aware that some modifications were necessary; but after they had been agreed to—as no doubt they would have been cheerfully—he had every confidence that the measure would have been accepted in regard to its main provisions. He was confirmed in that impression by the favourable reception the Bill had met with from the Archbishop of Canterbury, and the almost universal acceptance it had met with out-of-doors as a substantial and honest endeavour on the part of the Government to deal with one of the most difficult and intricate questions of the day. Had it been allowed to pass, he could not help thinking that they would have made some advance on a question of such vital importance to the nation as that of education, and that it would have been entitled to take its rank among the most useful Acts of the Sessions. Considering, however, the state of business in the other House of Parliament and the condition in which public affairs had been placed by the action of a right hon. Gentleman in that House, it was impossible that Government could entertain the slightest hope that a measure involving discussions of such a very intricate character had the slightest chance of passing in this Session. It was, therefore, the intention of Her Majesty's Government not to proceed any further with the measure in the present Session; and they had come to that decision with the more regret, because there was, he believed, another Bill in the House of Commons which might have been considered in conjunction with this, and which might have been found to contain some provisions of great usefulness. How far any of these were capable of being engrafted with success upon the measure of the Government it was impossible for him now to say; but obviously it would have been attended with advantage to the public if the two Bills could have been considered together. This, however, was hopeless in the existing state of things, and the Government were accordingly compelled reluctantly to withdraw the Bill. He begged, therefore, to move that the Order be discharged.
  EARL GRANVILLEsaid, he thought the Government had taken the wisest course in withdrawing a Bill which they had no hope of carrying this Session, and he congratulated the Lord President on the personal relief which he must feel. The Lord President (the Duke of Marlborough) had admitted the justice of the suspicion expressed by the noble Earl (the Earl of Harrowby) and by himself that the Bill presented to the House was only a portion of that which was originally drafted for consideration, and was in fact only a portion of a much larger measure of education which must sooner or later be taken into consideration, and his sound judgment must make him feel the inadequacy of the portion embodied in this Bill to meet the requirements of those interested in the extension of education. It would, moreover, have been a difficult task to defend the majority of the details in the Committee. There were, however, some clauses to which no objection had been made, and against which no Amendments had been threatened, but which; on the contrary, had been generally approved by nearly all who had taken part in the two previous debates. Such were the proposals respecting "evening schools," "secular schools," and "building grants." But at the same time very strong objections had been made to embodying minute regulations such as these in a Bill, instead of embodying them from time to time in Minutes to be then submitted to Parliament for their sanction. But, whether these objections were right or wrong, it would be very hard, now the Government had withdrawn their Bill, that the promoters of schools should be deprived of the advantages which they would enjoy if, in accordance with the ordinary practice, these proposals had already been embodied in Minutes. He wished to know what course the Lord President meant to pursue on this point. There was also another question of greater importance. He was not going to inflict on the House the speech he might have made on moving his Amendment on the Conscience Clause; but he wished to point out the difficulty in which the Government were placed, and the only way in which he thought they could advantageously meet it. The principle of Conscience Clauses had been adopted by the Committee of Council ever since 1846; but it was the late Lord Salisbury and Mr. Adderley who first had the credit of practically applying it to a certain number of Church schools.
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  They in certain cases refused to make Grants to schools unless the promoters agreed to insert in the trust deeds one of two Conscience Clauses. The same system was followed during the Governments of Lords Palmerston and Russell; and he believed, but was not sure, that no deviation had been made from it by either of the noble Dukes who since had presided over the Council. An important step, however, had been lately taken; the Bill which had been introduced by the Government contained a Conscience Clause, and the Bill was supported by the Archbishop of Canterbury chiefly because it contained that clause. Some of his (Earl Granville's) Friends had desired to divide against the Bill; but he ventured to disuade them from doing so on its second reading, partly because it was not inconsistent with a much larger measure, but chiefly because it established the principle of applying a Conscience Clause to some Church schools. His Friends yielded to that argument, and no one objected to the construction he had put on it. That Vote, in his opinion, was fatal to all the abstract objections to a Conscience Clause. He had looked over the famous Seventeen Reasons against a Conscience Clause that very morning, and he had found that Vote was absolutely fatal to them all. None of their Lordships could pretend now that there was a compact between the Executive and the Church which could not be broken, or that no clergyman could receive a Conscience Clause without detriment to his conscience, and that no Government or Parliament could impose such a burden on a clergyman. All that now remained was a question of degree and expediency, and not of principle. The Government had abandoned the Bill. What course did they now intend to pursue with respect to a Conscience Clause? The great difficulty he had felt in answering the objections of those hostile to a Conscience Clause was to explain why he had not procured Parliamentary sanction for it. When examined before the Committee of the House of Commons the following Question was put to him by the present Secretary of State for War (Sir John Pakington):—
  "May I take the liberty of asking why, as the head of the Department, you did not in the case of the Conscience Clause, as in the case of other important changes in the practice of the Office, place the question before Parliament?"
  He (Earl Granville) answered—

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  "I do not know whether I am wrong in what I have done, but I am quite ready to state to the Committee my reasons for acting as I have acted. I think that it is very important indeed, if possible, to arrange this Conscience Clause with the concurrence of the Church of England. It is very desirable, if possible, that the Privy Council, or whatever Department has charge of the education of the country, should be on good terms with the Church of England, and I hope that an advance has been made with the Conscience Clause in the minds of a very large portion, not only of Church of England men, but of the clergy of the Church of England.… But I think that if I were to propose to lay before the House of Commons a Conscience Clause now, exactly in the shape in which it is, with rather a difficult and wavering rule as to the number of Dissenters, the first question of the House of Commons would be—'Why are any number of Dissenters to be forced either to violate their religious feelings or to be excluded from the benefit of the education which is partly supported by the State?' I believe that our Conscience Clause does not go far enough now to satisfy the House of Commons, and at present I am afraid that we should not have concurrence on the part of the Church of England so as to enable us to bring in a measure which would be perfectly satisfactory with respect to the Conscience Clause. On this question of religious differences I think it is absolutely incumbent upon members of the Government not to bring them needlessly forward so as to cause irritation, unless they can see their way very clearly to a settlement of them."
  In another part of the evidence he (Earl Granville) expressed an opinion that a Conscience Clause should apply to building and annual grants. The right hon. Baronet, pursuing his examination, asked—
  "May we understand the substance of your Lordship's answers to be that you have abstained from submitting that important question to Parliament, partly from a feeling of conciliation towards the Church of England, and partly from the opinion (which is, I think, a sound opinion) that Parliament might say, 'If you adopt this clause you must carry it out to the full extent of the principle which it involves?'"
  To this he (Earl Granville) answered in the affirmative; but when he gave these reasons, the course of the Privy Council was known to everyone, and under that notoriety the House of Commons passed the Education Votes. These reasons now, however, no longer applied; the Government had negotiated with the Church, and had proved their opinion that it was time to approach Parliament; and they had condemned the present system by making a proposal more fettered with restrictions and with words in the clause of a new and doubtful construction. Admitting the necessity and wisdom of suspending the Bill, he hoped the Government would embody a Conscience Clause in a Minute of the Committee of Council. But, he asked,
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  what Conscience Clause was to be so embodied? There were many in the field. The Government had indirectly disapproved those which had been adopted or suggested by the Committee of Council; there was a clause proposed in an Education Bill now before the House of Commons, but the wording of it was new; and as to their own clause, the Government, must be convinced that, meagre in extent, vague in its meaning, and liable to all sorts of interpretations by succeeding political chiefs of the Department, it would not be tolerated for a moment in the House of Commons. Not one of the large Liberal majority was known to hold opinions on this subject different from those supported by him and confirmed by Sir John Pakington. Was it likely that the Secretaries of State for Foreign Affairs and of War, Mr. Adderley, and other eminent Conservative Members had changed theirs, at least, in a retrograde sense? His suggestion, therefore, was that the President of the Council should lay before Parliament a Minute embodying the Amendment of of which he (Earl Granville) had given Notice. It would have been presumptuous in him to press this course on the Government if the Amendment had been of a novel character. There was, however, nothing original about it. It only made building and annual grants conditional on the managers making rules for or adopting in practice the obligations of the claims of the Endowed Schools Act. That clause was approved by the right rev. Bench, passed by the Legislature, had been worked for eight years in the Charitable Commission and in the Court of Chancery, without a single case of litigation, find without a word of complaint from either Churchman or Nonconformist, The words "establish" in "practice" had already been introduced into several schemes of the Charity Commissioners and were intended in a conciliatory spirit to many clergymen who objected to the theory but not to the practice of a Conscience Clause. It was also in the spirit of the recommendation of the Middle-class School Commission. He was quite sure that if the Government desired to adopt a Conscience Clause it was impossible to unite so many reasons in favour of any other. The Government would incur a grave responsibility if they left this matter unsettled and declined to seek Parliamentary guidance for themselves. On the other hand, such a Minute, instead of adding to business in the House

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  of Commons, would facilitate the passing of the Education Votes. If questioned it would give the Government the luxury of finding themselves in an enormous majority, and it would tend more than anything else to arrest the current which was beginning to flow against a denominational system—and consequently against the Church of England—in favour of a purely secular one.
  LORD REDESDALEsaid, that, so far from the clause having been generally accepted, as the noble Earl had stated, the schools of the National Society and nearly all the Church schools in the country were exempted from its operation.
  THE DUKE OF MARLBOROUGHsaid, that the Endowed Schools Act, on which the noble Earl (Earl Granville) so much relied, did not, in point of fact, contain any Conscience Clause at all. It merely laid down the rule, and left the particular form of Conscience Clause to be afterwards adopted. A form had been prescribed by the Education Department; and the Government, after due consideration, had proposed another, which they thought would be an improvement, and which, after consultation with the heads of the Church, had been accepted by them, and by others who were unwilling to accept that now in use, and who were equally opposed to that supported by the noble Earl, As, however, it was not possible to obtain the assent of Parliament to it, there would be no deviation from the present practice, nor was it intended that there should be any deviation from the principles at present acted upon by the Education Department, without the direct sanction of the Legislature. As to the proposal of the noble Earl that the Government should lay on the table of either House a Minute embodying his views, he could only say that Her Majesty's Ministers had no such intention. He could only repeat the regret that Government felt that they had neither the opportunity nor the power of legislating during the present Session on the subject of education.
  After a few words from the Earl of AIRLIE,
  Order for the House to be put into Committee on Friday next, discharged.

REGULATION OF RAILWAYS BILL.
( The Duke, of Richmond.)
REGULATION OF RAILWAYS BILL.

  (No. 95.) REPORT.
  Amendments reported (according to Order).
  Amendments made.
  Clause 14 (Fares to be posted in Stations).
  LORD STANLEY OF ALDERLEY LORD STANLEY OF ALDERLEY moved an Amendment compelling railway companies to print on each ticket the fare for the journey for which it was issued.
  THE DUKE OF RICHMONDdeclined to assent to the Amendment, which he regarded as unnecessary. This very clause afforded the public sufficient protection, inasmuch as it provided that a list of fares should be exhibited at the various railway stations. For his own part he very much doubted whether passengers were often cheated in purchasing their tickets.
  THE EARL OF CLANCARTYsupported the Amendment. He thought, amongst other advantages, it would tend to facilitate the keeping their accounts.
  THE MARQUESS OF SALISBURYtrusted that their Lordships would support the Government in their resistance to an Amendment which could afford no additional protection to the public, while it would entail a large extra expenditure on the railway companies. As their Lordships could easily understand, the tickets were struck off in large numbers, and, as the fares were continually being altered, with each change the tickets not issued would have to be destroyed. On one occasion the Great Northern Railway Company, having made an extensive alteration in their tariff, had to destroy no less than 1,000,000 tickets, which had become useless from this cause. The constant tendency of railway fares in this country was to become lower and lower, and therefore it would be detrimental to the public interest were their Lordships to discourage railway companies from altering their fares. Upon what ground did their Lordships propose to fix this expensive regulation upon commercial undertakings of this description? Could the noble Lord who proposed the Amendment (Lord Stanley of Alderley) adduce any evidence to show that the interest of the public had suffered from the absence of such a provision, which, in his humble opinion, was

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  introduced to remedy an evil purely imaginary? The noble Lord who had spoken last (the Earl of Clancarty) had said that a provision of this kind would assist the railway companies in the management of their accounts. He entreated the House to leave railway companies to take care of themselves. It was the function of their Lordships to protect the public; but when they had taken measures to effect that object, he hoped that they would trust the railway companies to know what was for their own interest better than outside spectators were likely to do. He could not help thinking that this proposal, and that which was to follow it, was an endeavour to administer to railway companies a large dose of red tape. Before they assented to such a course being taken, their Lordships ought to look at home. That House and the other House of Parliament had had the absolute control for centuries over a large number of offices, and he asked them whether this system of minute and excessive supervision had been so successful as to warrant their Lordships in supporting an attempt to extend it to the great commercial enterprises of; the country? The duty of their Lord ships was clear. Let them impose broad, easy, and intelligible provisions for the; protection of the public, and then let the railway companies take care of themselves.
  LORD STANLEY OF ALDERLEYthought that the noble Marquess had rather exaggerated the trouble and expense to which railway companies would be put by this provision, which would certainly be of service to the public—for what was there to prevent a dishonest station-master from taking larger fares than authorized? As to the practical objection of the noble Marquess, he would point out that the Great Northern Railway Company still printed the prices upon their tickets.
  LORD COLVILLEsaid, that company had discontinued the practice for the last eighteen months.
  LORD STANLEY OF ALDERLEYsaid; he was sorry to hear it. It had been said; that the railway interest was particularly well represented in the other House of Parliament; but, as far as he could discover, that interest did not appear likely to suffer in that House. He should not, however, press his Amendment.
  Amendment negatived.
  EARL GREYproposed an Amendment, by inserting words to compel railway companies to publish a statement of their rates and charges for the conveyance of goods, minerals, & c, in the form of a pamphlet, which should be sold to the public for 6d. at the stations of each company. The noble Earl said it was a matter of notoriety that the law which required railway companies to treat their customers upon equal terms was constantly evaded. He saw no objection to railway companies making a reduction in their rates in favour of those who did a large business with them; but he thought that all persons standing upon an equal footing should have similar advantages. If, therefore, the companies thought proper to reduce their rates in favour of certain persons, they should be compelled to lay before the public the grounds upon which they made such reduction. He thought that the rates might be easily printed in form of a small pamphlet.
  Page 6. After Clause 14, moved to insert the following Clause:—
  Every Railway Company shall cause a printed Statement to be prepared of its Charges for the Conveyance of Goods; such Statement shall show the Charges per Mile for Goods of various Classes, and also the terminal Charges, and if Deductions from the usual Charges are made in certain Cases on account of the increased Distances Goods are conveyed, or in consideration of Contracts having been made by particular Persons for sending large Quantities of Goods, an Account shall be given of all such Deductions. Such Statement shall be prepared in a Form to be approved by the Board of Trade; and after the First Day of January One thousand eight hundred and sixty-nine Copies of this Statement shall be kept at every Station of the Company, and the Station Master shall be bound to deliver One to every Person applying for the same on receiving Sixpence in payment thereof.—(The Earl Grey.)
  THE DUKE OF RICHMONDsaid, he could not give his assent to the Amendment proposed by the noble Earl. The noble Earl talked about the rates being published in a small pamphlet to be sold for 6d. This would be about the size of the small pamphlet (holding up a folio volume). It was the list of fares kept at a small station in Wales. The list would have to be revised every week; so that the person who purchased it this week would next week be in the position of a man who purchased at Epsom the card of the previous day's races. As regarded the goods traffic, if the consignee were dissatisfied, it would be perfectly competent for him, to obtain all the information

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  he required. He did not believe that the public would be at all benefited by the adoption of the Amendment proposed by the noble Earl; and therefore he should adhere to the clause as it stood in the Bill.
  EARL GREYhad no hesitation in saying that such a statement as he required might be given by any railway company in four or five pages. There was a very general belief that certain charges on goods were made low between particular districts to conciliate private persons who had interest on particular Boards of Directors. If that statement was unfounded, it would be easy to contradict it; and no parties were so much interested, in having the facts well ascertained than the railway companies themselves. There could be no real difficulty in affording all the information he desired.
  EARL FORTESCUEsaid, he must confirm the statement of his noble Friend. Such statements had been made to him repeatedly; and when the Queen's highway had been practically superseded, when railway companies monopolized the traffic, and were tending to coalition instead of competition, the public were deeply interested in having at least such protection as publicity with regard to charges could give.
  THE EARL OF CLANCARTYthought that, especially in Ireland, where traffic was undeveloped, and frequent changes in rates must be made, the re-printing of voluminous statements would be attended with great expense, and would be of no value whatever.
  LORD COLVILLEdesired to draw attention to a statement which had been drawn up by one of the most experienced managers of railways in the kingdom, Mr. Seymour Clarke, for the purpose of showing the enormous number of items which must be comprised in the book of rates required on the Great Western system. The number of rates between the various stations would be 500,000, and on the London and North-Western system, with 600 stations, they would be 10,000,000. Great expense would necessarily be incurred by the publication of such statements and their frequent alteration, and he did not see what advantage could be derived from it.
  LORD BELPERsaid, that this proposition did not in any way interfere with the management of railways. Railway companies at present could, within certain limits, make what charges they liked for
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  the carriage of goods, and it was of great importance that publicity should be given to their rates. The public depended on them for the carriage of goods, and all that was wanted was that the public should know what the charges were. Public opinion would then be brought to bear upon them. It was a subject of universal complaint that these charges were very irregular and unjust, favour been shown to particular parties. If such complaints were unfounded no parties would derive more benefit from their contradiction than railway directors themselves. If, on the other hand, the charges were true, the best mode of providing a remedy against such proceedings was by bringing public opinion to bear on them.
  LORD STANLEY OF ALDERLEYsuggested to meet the objection on the ground of expense, that instead of adopting the clause proposed by the noble Earl exactly as it stood, it would perhaps be as well to require the Companies to publish in the first place a standard book of rates and charges, and subsequently to print only such alterations as might from time to time be made.
  THE DUKE OF RICHMONDsaid, that no confusion arose from the present practice, for persons who wished to send goods by a railway had only to go and ask the station-master what was the rate charged at the time. On the other hand, if a printed book of the rates of carriage were published the rates might be changed at the end of a week, and then the book would either be useless to or would mislead the persons who had bought it.
  EARL GRANVILLEthought that the argument in favour of the greatest publicity possible being given to the rates of charge by railway companies very strong.
  LORD REDESDALEwas of opinion that the adoption of the clause would have a tendency to cause railway companies to raise the rates of charge instead of lowering them.
  On Question? their Lordships divided:—Contents 29; Not-Contents 53: Majority 24.

  CONTENTS.

  Grafton, D.

  Fortescue, E.

  Granville, E.

  Camden, M.

  Grey, E.

  Normanby, M.

  Kimberley, E.

  Minto, E.

  Airlie, E.

  Morley, E.

  Clarendon, E.

  Spencer, E.

  Ducie, E.

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  Falmouth, V.

  Ponsonby, L. (E. Bessborough.) [Teller.]

  Sidmouth, V.

  Sydney, V.

  Portman, L.

  Belper, L.

  Somerhill L. (M. Clanricarde.)

  Clifford of Chudleigh, L.

  De Tabley, L.

  Stanley of Alderley, L. [Teller.]

  Foley, L.

  Leigh, L.

  Sundridge, L, (D. Argyll.)

  Lyveden, L.

  Meredyth, L, (L. Athlumney.)

  Taunton, L.

  NOT-CONTENTS.

  Cairns, L. (L. Chancellor)

  Templetown, V.

  Gloucester and Bristol, Bp.

  Buckingham and Chandos, D.

  Oxford, Bp.

  Cleveland, D.

  Bagot, L.

  Marlborough, D.

  Chelmsford, L,

  Richmond, D.

  Clinton, L.

  Rutland, D.

  Colchester, L.

  Colonsay, L.

  Ailesbury, M.

  Colville of Culross, L. [Teller.]

  Bath, M.

  Salisbury, M.

  Delamere, L.

  Denman, L.

  Amherst, E.

  Dunboyne, L.

  Bradford, E.

  Elphinstone, L.

  Cadogan, E.

  Fitzwalter, L.

  Dartrey, E.

  Foxford, L. (E. Limerick.)

  Derby, E.

  Devon, E.

  Hartismere, L. (L. Henniker.)

  Ellenborough, E.

  Graham, E. (D. Montrose.)

  Kesteven, L.

  Kingston, L. (E. Kingston.)

  Hardwicke, E.

  Lauderdale, E.

  Moore, L. (M. Drogheda.)

  Lucan, E.

  Malmesbury, E.

  Penrhyn, L.

  Nelson, E.

  Redesdale, L.

  Romney, E.

  Saltersford, L. (E. Courtown.)

  Clancarty, V. (E. Clancarty.)

  Saltoun, L.

  Silchester, L. (E. Longford.) [Teller.]

  De Vesci, V.

  Hawarden, V.

  Tredegar, L.

  Lifford, V.

  Vernon, L.

  Resolved in the Negative.
  THE MARQUESS OF CLANRICARDEproposed to insert the following clause:—
  "Where any Charge shall have been made by a Company in respect of the Conveyance of Goods over their Railway, on Application in Writing within One Week after Payment of the said Charge, made to the Secretary of the Company by the Person who shall have paid the same, the Company shall within Fourteen Days render an Account to the Person so demanding the same, distinguishing how much of the said Charge is for the Conveyance of the said Goods on the Railway, including therein Tolls for the Use of the Railway, for the Use of Carriages, and for locomotive Power; and how much of such Charge is for loading and unloading, covering, Collection, Delivery, and for other Expenses, but without particularizing the several Items of which the last-mentioned Portion of the Charge may consist."
  The wording of the proposed clause was
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  taken from an existing Act relating to the Lancashire and Yorkshire Railway.
  THE DUKE OF RICHMONDsaid, he saw no objection to the proposed clause.
  Clause agreed to, find added to the Bill.
  Clause 15 (Communication between Passengers and Companies' Servants).
  THE DUKE OF RICHMONDproposed the addition of words to the end of Clause 15, with the view of preventing the improper use of the apparatus for that purpose, A noble Earl (Earl De Grey and Ripon) the other day suggested that there should be a penalty attached to the clause, and he thought that would be the best plan. He therefore proposed to insert at the end of the clause words providing that any passenger who made use of such means of communication without reasonable and sufficient cause shall be liable for each offence to a penalty not exceeding £5.
  Amendment agreed to.
  THE EARL OF CLANCARTY THE EARL OF CLANCARTY moved in Clause 15 an Amendment to the effect that the Board of Trade should "prescribe," instead of approve of, the mode of communication between the passengers and the guards of a train.
  THE DUKE OF RICHMONDsaid, the matter was discussed three days ago, and be had not heard any argument which led him to alter his opinion upon it. He thought the company should propose the particular plan of communication, and that it should be left to the Board of Trade to approve of it; because if the latter had to "prescribe," they would have to adopt some general scheme in which a company could make no alteration, and a perfect system might never be attained.
  Amendment negatived,
  Clause, as amended, agreed to
  THE DUKE OF RICHMONDproposed a new clause in reference to the non-consumption of smoke. By the Railway Clauses Consolidation Act, 1845, it was provided that where a locomotive emitted smoke, and was not constructed on the principle of consuming its own smoke, a penalty not exceeding £5 was to be imposed for every day such locomotive was used. In the case of the Manchester, Sheffield, and Lincolnshire Railway, the magistrates convicted the Company, because an engine of theirs emitted smoke; but the Court of Queen's Bench, upon appeal, decided that as the engine was constructed

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  to consume its own smoke, the terms of the Act had been complied with, and quashed the conviction. He thought that it was desirable to alter the existing law as little as possible. He therefore should prefer leaving the law as it was, making it incumbent upon a railway company to have all their engines so constructed as to consume their own smoke; and he proposed that where an engine was so constructed, but failed to consume its own smoke through the default of the driver or person using it, every person guilty of such offence be liable to a penalty not exceeding 40 s. In every case in which the engine had not been constructed to consume its own smoke proceedings might be taken against the company.
  EARL GREYhoped the noble Duke would reconsider the decision arrived at. If the penalty were recoverable merely against the engineers and stokers, how were the persons complaining to discover the persons guilty of the offence? Cases had been brought under the notice of the noble Duke in which persons had been exposed to great inconvenience; and their houses rendered almost uninhabitable by the continuing nuisance of engines vomiting clouds of smoke. Few people liked to be put in the position of prosecutors; but one gentleman, who had taken up the question energetically, thereby made himself obnoxious to the engine- drivers, who inflicted upon him every petty annoyance they could, so that his house became almost uninhabitable. Railway companies had a remedy in their own hands, for they had the power of dismissing their own servants; whereas the only remedy which the public could have lay in making the company responsible. In London the penalties against engines which did not consume their own smoke had never been enforced, till the duty of enforcing them was placed in the hands of the police, and the odium thereby removed from private prosecutors. The clause of the noble Duke really did not strengthen the law as it now existed at all.
  THE DUKE OF CLEVELANDsaid, that the law was plain enough, but what was really wanted were facilities for carrying the law into execution. At present railway companies could afford to run the risk of an information being laid against them because they knew that, practically, persons would not take the trouble to do so.
  LORD REDESDALEalso thought it would be better to transfer the penalty
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  from the driver to the railway company, who would then take care that their servants attended to the fires; and that the penalty might be advantageously increased from 40 s. to £5. In other respects he approved the clause.
  THE MARQUESS OF SALISBURYsaid, the reason for putting the penalty on the driver instead of the company, was that it was the driver's fault if the smoke was not prevented; and, moreover, directed against the driver himself would be more likely to frighten him than one directed against the company. Their Lordships, however, must not suppose that they could succeed in all cases in preventing this. While a train was in motion it was perfectly feasible to prevent smoke from being emitted; but by a higher law than the omnipotence of Parliament, locomotives stopping still, when the fire at the same time required to be replenished, could not be prevented from sending out a certain quantity of opaque smoke. The wording of the clause suggested by his noble Friend opposite (Earl Grey) was of Draconic stringency, for the penalty was to attach "every time that smoke was emitted," meaning, he supposed, every puff.
  THE LORD CHANCELLORsaid, there was a defect in the Railway Clauses Act of 1845 which clearly was never contemplated at the time it passed. It provided that every locomotive should be constructed on the principle of consuming its own smoke; but it did not go on to say that it should consume its own smoke whenever practicable. It was very desirable that this defect should be remedied, and the clause proposed by the Government would do so. Inasmuch as there was a difficulty in ascertaining the name of the driver of an engine, it would be much better to make the railway company responsible to the public, leaving the company to arrange matters between themselves and their servants, which they no doubt could do satisfactorily. The noble and learned Lord then suggested a clause to the effect that where the engine failed to consume its own smoke through the default of a servant of the company, the company should be guilty of the offence under the clause in question in the Railway Clauses Act.
  Clause, as amended agreed to, and added to the Bill.
  THE DUKE OF RICHMOND THE DUKE OF RICHMOND moved the insertion of the following clause after

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  Clause 21 to enable companies to issue preference shares in certain cases in lieu of dividends:—
  "Where, in pursuance of a Vote of a Majority of not less than Three Fourths of the Holders of Ordinary Shares or Stock of a Company entitled to vote and present personally or by proxy at a General Meeting of the Company, any Portion of the Amount declared by the Auditors of the Company to be applicable to the Payment of Dividends on the Ordinary Shares or Stock of the Company is applied to the Redemption of the Debentures of the Company or to authorized Works of Coustruction, the Company may then or at any Time afterwards, in pursuance of the Vote of a like Majority, issue in lieu or byway of Dividends to the Holders of such Ordinary Shares or Stock a corresponding Amount of any Preference Shares or Stock which the Company are for the Time being empowered to issue, either as fully or as partly paid up, and any Preference Shares or Stock so issued shall go and be held in the same Manner and according to the same Rights and on and subject to the same Trusts, Charges, and Liabilities as the Ordinary Shares or Stock in respect whereof such Issue is made."
  THE EARL OF CLANCARTYopposed the clause, on the ground that it would be injurious to the existing preference shareholders.
  LORD REDESDALEpointed out that the shares which were to be issued were only those the company were already authorized to issue; but his objection to the clause was that it would enable the company to apply all the dividends to the payment for work or release debentures: the ordinary shareholders might be paid in stock; but the preference share-holders need not be paid a sixpence.
  THE LORD CHANCELLORsaid, he did not think the noble Lord's reading of the clause correct. Supposing a railway company had £50,000 applicable to dividend after every charge on the working account had been satisfied, that £50,000 would be applied to dividends on preference shares under the proposed clause; but if some part or the whole of that sum were applicable to pay dividends on ordinary shares, and the company had £50,000 worth of unissued preference shares, the company would he empowered by the clause to resolve to issue those shares, instead of paying the dividend; and the £50,000 could then be applied to the redemption of dividend or the execution of unfinished works.
  LORD REDESDALEcontended that his view of the case was the correct one. He felt convinced that the proposal as it stood was extremely unjust, and that it would probably lead to gross mismanagement,
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  though it would not be open to so much objection if the payments were made in ordinary instead of in preference stock. Indeed, if Parliament could have foreseen the evils which had resulted from the issue of preference stock he very much doubted whether it would have given its sanction to a system which had led to the ruin of most railways by which it had been indulged in.
  THR DUKE OF RICHMONDsaid, that the difference of opinion with regard to the clause appeared to be so strong that he would withdraw it for the present, and bring it up again another evening in an amended form.
  Clause withdrawn.
  Amendments made.
  Bill to be read 3a on Friday next, and to be printed, as amended, (No. 101)
  House adjourned at half-past Seven o'clock, till To-morrow, half-past Ten o'clock,